February 14, 2024 • 27 mins
On this episode of Our American Stories, despite being a member of President Roosevelt's New Deal team, Hatton Sumners—a name most people don't know today—put his political career on the line to prevent FDR from packing the Supreme Court. Here's Josiah Daniel with the remarkable story of why there are still 9 Supreme Court justices today.
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Speaker 1 (00:10):
This is Lee Habib and this is our American Stories,
the show where America is the star and the American
people up next to story out of Texas and about
a man who was certainly of his time, but put
his career and influence on the line to do the
right thing for our country. You to tell a story
is Josiah Daniel Take it away.
Speaker 2 (00:31):
Josiah Hatton was a confirmed bachelor, so he had no offspring.
She was born in rural Tennessee in eighteen seventy five,
and he moved with his family to Garland, Texas in
eighteen ninety ninety or ninety one, and as a child
(00:53):
or a young man a teenager, he entered into an
arrangement with a book publisher to make door to door
book sales in rural Tennessee. He was so young his
father had to co sign the contract with him, and
he became disgruntled with the publisher, felt that he wasn't
(01:14):
receiving the commissions to which he was due based upon
his successes in the sales, so he wrote a series
of hot letters to the publisher in which he threatened
to sue them. I see this as an early manifestation
of his lawyerly instincts. The traditional way to become a
(01:36):
lawyer in the US was to quote read the law,
or to become an apprentice in a lawyer's office. You
would help the lawyer in his practice, probably copying documents
and things. At the same time, the lawyer would teach
the apprentice the rules of law and how you be
a lawyer. Summers did that for two years in the
(01:58):
office of the City Attorney of Dallas, and after that
he passed what was then a pretty simple bar exam
and became a licensed lawyer. He was therefore more or
less a self taught lawyer and constitutional scholar. I believe
(02:19):
Sumners was always a little embarrassed that his formal education
was so skimpy. He had one year of a formal
high school. So when he got to Congress, he was
in the minority party, the Democratic Party, so he didn't
have a lot to do legislatively, and he did walk
over to the library of Congress and just read law
(02:42):
books and history books and taught himself a lot of history,
particularly focusing on the history of the Constitution, all the
way back through English legal history, back to the Norman
Conquest and even earlier. That's how he became a well,
well recognized and skillful constitutional scholar. Was reading it at
(03:07):
the Library of Congress, and even FDR recognized it. Franklin D. Roosevelt,
the President, asked Hatton Sumners to write a constitution for
the Philippine Islands. At that point, the Philippines were a
territory of the USA, but Congress a few years earlier
(03:32):
had legislated that it was to be made an independent
nation over a period of time leading up to about
nineteen forty one, and Sumners wrote a constitution that was
the model or draft from which the Philippine people themselves,
in their own constitutional Convention, wrote their own constitution. They
(03:55):
didn't accept everything, or even maybe very much of what
he proposed in his constance, but the fact that Roosevelt
picked Sumners shows that he reposed a fair amount of
confidence in Sumners as a constitutional scholar and constitutional lawyer.
And some people think Sumners could have been a candidate
(04:17):
for the Supreme Court. I guess maybe if the court
packing plan had passed. He was quite opposed, and he'd
put his political influence, his clout, his reputation on the
line in opposing it. Any attempt to understand the nineteen
(04:38):
thirty seven court packing crisis should begin with the Great Depression.
Speaker 3 (04:45):
On a Sunday night, a week after my inageration, you
were at the radio to tell you about the banking
crisis and about the measures that we would take into meeting.
In that way, I tried.
Speaker 2 (04:55):
To make plans in the.
Speaker 3 (04:56):
Country very inspects that might not arise, have been misunderstood,
and in general to provide a means of understanding, which
I believed didn't much for stock content.
Speaker 2 (05:09):
So the stock market crashed in October nineteen twenty nine,
that's only ten months after Herbert Hoover had been inaugurated president,
and the US economy over the next several years entered
its worst period in all of US history. In some industries,
unemployment reached almost fifty percent, and in the cities there
(05:31):
were soup lines and people living in cardboard shanties. So
Roosevelt won in a landslide by about twenty three million
votes to sixteen million votes, and the voters also elected
strong majorities of Democrats in the House and Senate for
the first time in a long time. So FDR had
plenty of power to enact his platform, and his advisors
(05:55):
generated a surge of innovative legislation that Congress prompt enacted,
all of which is known collectively as the New Deal.
Speaker 1 (06:12):
And you're listening to Josiah Daniel tell the story of
Hatton Sumners, and my goodness, what a story you're hearing about.
Just for instance, how he got to practice law. There
was a day where you could apprentice and then simply
take the bar and you're a lawyer. I spent three
years at the University of Virginia School of Law, and
I really didn't learn anything about how to practice law.
(06:33):
And I paid a lot of money for it too.
We learned some of our Lincoln stories. He too had
a quote skimpy education, but my goodness, he taught himself
and gave himself a world class education as Hatton Sumners did.
When we come back, we're going to learn how this
man who helped write the Constitution as a congressman from Texas,
(06:54):
a Democrat for the President of the United States FDR,
put his own career in jeopardy by opposing President Roosevelt's
court packing scheme. That story continues here on Our American Stories.
(07:30):
This is Lee Habib, host of our American Stories. Every
day on this show. We tell stories of history, faith, business, love, loss,
and your stories. Send us your story small or large
to our email oas at Ouramerican Stories dot com. That's
oas at our American Stories dot com. We'd love to
(07:51):
hear them and put them on the air. Our audience
loves them too. And we returned to our American Stories
(08:11):
and the story of Hatton summoners and the court packing
crisis of nineteen thirty seven. Let's get back to the story.
Here again is former lawyer and expert Onnhattan, Jaziah Daniel.
Speaker 2 (08:31):
The specific programs ranged from temporary relief or jobs and
infrastructure projects for the destitute and the unemployed, and also
long term structural reforms such as taking the nation off
the gold standard, the Wagoner Act that validated labor contracts
(08:51):
and labor unions, social Security, the whole alphabet slew of
alphabet agencies and laws and programs Uprisingly, the businesses and
the individuals who disliked the president's legislated changes hired lawyers
and they sued to invalidate the new laws based on
(09:12):
various constitutional arguments. So some of the new Deal measures
began to encounter adverse rulings by the Supreme Court. At
that time, the court consisted of eight Associate justices and
one Chief Justice. The Chief Justice was Charles Evans Hughes.
(09:34):
Four of those nine formed a block that began to
vote consistently against the challenged New Deal programs. They were
known colloquially as the four Horsemen of the Apocalypse. Four
others tended to be more progressive and to vote to
validate the New Deal, and that left one swing vote,
(09:57):
Owen Roberts. And the year of the New Deal, nineteen
thirty five, Roberts began to vote with the four Horsemen,
and the Supreme Court invalidated a dozen New Deal laws,
the TRIPLEA, the Agricultural Adjustment Act, the Coal Act, the
Municipal Bankruptcy Act that had been sponsored by Hatton Sumners,
(10:22):
the Railroad Retirement Act, the National Industrial Recovery Act, and
a minimum wage law. In fairness, it's true that the
same court also sustained two dozen New Deal laws, But
never before had the Supreme Court invalidated so many laws
in such a short period of time that had been
(10:42):
passed on behalf of a president. Only three were decided
by a single vote, and some were unanimous. But in
the controversy, people began to notice that all of the
justices were rather well aged. They were seventy to seventy
seven years of age at a time when the average
(11:04):
life expectancy of a mail in the US was sixty.
So some political commentators began to lampoon the Court as
the old Nine Men. In addition, opponents of the New
Deal obtained more than two thousand injunctions against New Deal programs. So,
(11:25):
as I call it, Roosevelt had a serious litigation problem.
He was deeply concerned. He was frustrated and even angry
about it, and in the presidential election of November third,
nineteen thirty six, Roosevelt won his second term with an
(11:47):
even larger landslide. So he truly believed that he had
a renewed mandate for the New Deal from the people,
and literally two weeks after his inauguration, Roosevelt made a
surprising announcement at the White House. He had summoned the
leaders of Congress, including Sumners, who was the House Judiciary
(12:11):
Committee chair, and he proposed a bill under which each
justice aged seventy or more who declined to resign, one
additional seat on the Court would be automatically created, so
based on the ages of the justices, this implied there
(12:32):
would be six new justices for a total of fifteen.
FDR also proposed some other measures that he said would
promote the efficiency of the federal judiciary, and he called
the whole thing the Judicial Reform Bill. But the court
packing proposal was obviously the main point. Public consternation erupted.
(12:56):
The nation's newspapers editorialized for the next five and a
half months, almost all against it. Gallop Pole consistently found
the majority of Americans against it. People were arguing about
it on street corners and in public spaces, and they
literally covered Congress up with letters and telegrams, mostly in opposition.
(13:20):
But the President persistently pushed it forward, including by his
famous radio fireside chats and by personally lobbying members of Congress,
and it created what historians call a crisis. Now, I
guess I should pause and just cover a few fundamentals
(13:40):
of the US Constitution that are relevant to this story.
Article three, section one says the judicial power of the
United States invests in one Supreme Court and such inferior
courts as Congress from time to time establishes so Congress
not only establishes the lower federal courts, but it also
(14:01):
determines who are the rest of the justices that sit
on the Supreme Court. From seventeen eighty nine to eighteen
sixty nine, the number of justices on the Supreme Court
ranged from three to ten, but since then the number
has been nine. Also, Article three provides that all federal
(14:24):
judges hold their office during good behavior, which has always
been understood to mean for life, and shall receive compensation
for services that shall not be diminished during their continuance
in office. So life tenure and salary protection are the
two principal means by which Supreme Court justices are protected
(14:48):
against raw political pressure, as is applied to legislators and
even to the president. So the idea is that federal
judge just should be completely impartial, free of political pressure,
free from fear or favor in deciding questions of law.
(15:09):
And this is the concept called judicial independence. So what
is court packing? Well, it's defined by the Law Dictionary
as the notion of adding seats to the Supreme Court
in order to create a new majority of justices favorable
to the legislative and political program of a president and
the significance of a court packing proposal, then, is to
(15:32):
pack the court threatens to interfere in judicial independence and
in the normal operation of checks and balances as applied
to the judicial branch of the national government, as has
been the norm over our national history.
Speaker 1 (15:49):
And you've been listening to Josiah Daniel tell the story
of Hatton Sumners, and think about this remarkable man and
the position he's now in. He's hands down one of
the top constitutional scholars in Congress. That's why he's earned
the position of House Judiciary chairman. He's a Democrat. Franklin
Delanor Roosevelt is a Democrat. He's written the Constitution for
(16:11):
the Philippines, for goodness sake. And while FDR wins his
second term, wins it in the landslide, and that Supreme
Court keeps getting in the way of his legislative agenda,
and the Court at least enough members or of the
mindset that what the President is doing and what the
Congress is doing is unconstitutional. And this is the function
(16:33):
of the Supreme Court in the end, to be an
independent check on the popular majority and to uphold the
text of the Constitution. No majority can take away our
right to free speech. No majority can take away our right.
No amount of votes can take away our right to
process or to a search warrant. So if one hundred
percent of the electorate decides that there are no more
(16:54):
search warrants, that's why the Supreme Court's there. It says
no unconstitutional. So here's and and here's what we know
will be a showdown. You can hear it. Come in, folks,
this great Democrat chairman of the House Judiciary Committee and
Franklin Danno Roosevelt saying I've got a plan to get
my way with the Supreme Court. I'm going to add
(17:14):
members to get my way. What will happen next, Well,
that's why we're going to stick around. But my goodness,
when you start to hear some of these things today,
you're going to know that, well, we've been here before,
It's happened before. And that's what we love doing on
this show is tell stories that in some ways are
still very relevant. When we return the story of Hatton Sumners,
(17:37):
the story of FDR and is court packing, what happens
next here on our American story? And we returned to
(18:09):
our American stories and the final portion of our story
on Hatton Sumners and the Court packing crisis of nineteen
thirty seven. When we last left off, because Ia Daniel,
a former lawyer and expert on Hatton Sumners, was telling
us about how the crisis came to be. The makeup
of the court threatened FDR's New Deal policy. FDR wanted
(18:31):
to expand the court to as many as fifteen justices.
Haughton would stand opposed despite being a member of the
New Deal team. Let's return to the story.
Speaker 2 (18:46):
The Constitution doesn't say anything about how many justices will
sit on the Supreme Court. That's up to Congress to decide.
And Congress started with three, and it raised it to
four in eighteen zero one. Then in after the Civil War,
when Andrew Johnson became the president, the Republican Congress wanted
(19:07):
to deny him an appointment to the Supreme Court. By
this point in time, Congress had raised the number of
justices to ten. So Congress reduced it to nine, depriving
Johnson of an appointment. And it's been at nine ever since.
So it's not in the Constitution the number nine. It's
a matter of legislation, but it's also been a matter
(19:29):
long standing. People are used to it, and people believe
that it's an inherent part of the Supreme Court, and
there are scholars who will say that based on their
studies of judicial process, nine is a pretty ideal number.
An even number of justices just wouldn't work because there's
(19:50):
always the possibility of a tie, So we need an
odd number. And the case load of the Supreme Court
has always been such. In fact, the Court often has
been running a little bit behind and handling its docket
because it has so many cases. But you need nine
justices to be able to write the opinions expressing the
(20:14):
decisions of the courts on the issues presented in those cases.
You really do need nine different authors to be able
to write them all. That's kind of the magic of
the number nine. But FDR's argument for expanding the court
was very simply, and he acknowledged this in some of
(20:36):
his fireside chats, was to gain a majority of favorable
votes on the Court that would vote to sustain and
not reverse his New Deal programs. He was very explicit
about that. And with nine, and with Owen Roberts voting
with the four Horsemen, there were five of nine that
(20:57):
were a threat to his most cherished programs such as
Social security. That was really the reason, and honestly, I
can't think of any other really good reason people have
ever advanced for adding more. It's almost always been to
obtain a majority, and that clearly threatens judicial independence. And
(21:23):
Sumners he was quite opposed, and he'd put his political influence,
his clout, his reputation on the line in opposing it.
Although he was a member of the New Deal team.
The President wanted Sumners to file the Court packing bill,
(21:44):
and Sumners definitely sidestepped it, and he then had to
bite his tongue in public, and he got himself ready.
He introduced a bill called the Retirement Bill, which he
thought would solve the problem for FDR at the same
time preserving a court of nine. And that was to
(22:08):
make it possible for Supreme Court justices for the first
time to retire from the court and to keep their
compensation at the same amount for the rest of their lives.
There were several of the Supreme Court justices who wanted
to retire, but they felt that they financially couldn't. And
(22:28):
in correspondence with his constituents, he wrote to a Dallas minister.
He wrote, it's just good common practical sense to make
it possible for these men on the Supreme Court to
retire voluntarily when they want to do so. I am
putting everything I have into the effort to work this
(22:50):
problem out. It's like a fisherman trying to land a
big fish in difficult water. I do not believe anybody
on the bank can tell him very well what to
do to others, he confided that he believed he was
the only person in the nation who could do this,
and the thing he was trying to do did, in
(23:13):
fact only take a short amount of time. More the
Retirement Act was passed quickly on a bipartisan basis, and
then six weeks later, the first Justice announced his retirement,
so that opened a slot for the president to appoint,
(23:34):
and Roosevelt appointed Hugo Black of Alabama to fill that slot,
assuring a favorable majority on the Court for Roosevelt. Roosevelt
course didn't relent. He continued to push the court packing
plan for another couple of months, and finally Sumners couldn't
sit on his hands any longer, and on July the
(23:56):
thirteenth of nineteen thirty seven, he rose the House of
Representatives and he made a pretty long speech in which
he announced that the court packing bill, if it ever
passed the Senate and came to the House to his
House Judiciary Committee, it would never leave his committee. And
(24:17):
that's because he pointed out to the President, we've already
solved the problem by this retirement bill. You don't need
the court packing plan. He noted that replacing the one
justice fandom enter was just as effective for the President
as adding two seats on the Supreme Court would have been.
And he said, quote, there was no controversy, no noise.
(24:40):
We've done it with a surgical instrument, not a meat axe.
This was not mere politics for Hatton Sumners. He had
a very deep respect for the US Constitution. He thought
of it sort of as a platonic ideal that existed
(25:05):
and persisted over the millennia, unchanged and unchangeable, not perfect.
Obviously there have been amendments to it. And he also
thought that Supreme Court justices from time to time might
make the wrong decision, but he had faith that over time,
(25:26):
the Constitution and decisions made under it would adhere to
his ideal, and the court packing plan threatened that because
it violated what he thought of as the ideal of
the Constitution, and that is, let the institution do its
work and it will correct itself over time. In fact,
(25:49):
he showed by his Retirement Act that if you just
made it possible for a justice to retire who was
holding back for financial reasons, the president could appoint a
new one and a new majority would not make the
same decisions that the court had been making before. It
would sustain the president's program as opposed to invalidating it.
(26:14):
I think the rule of law depends, to a very
large extent in our nation on the existence and the
operation of the US Supreme Court. It's vital that the
public have respect for the Court and that the Court
have its decisions have legitimacy in the eyes of the
(26:38):
American people. And if those decisions are subject to quick
changes of court personnel at the behest of another branch
of the federal government, whether it's the President or Congress,
then the constitutional system is not being vindicated and the
(27:01):
Court will lose the respect. So court packing is a
real threat to the Supreme Court, its legitimacy and its
foundational role in the rule of law that we treasure
here in the United States of America.
Speaker 1 (27:20):
A story of profiles and courage hat in Sumner's story.
Here on our American stories.
This is Lee Habib and this is our American Stories,
the show where America is the star and the American
people up next to story out of Texas and about
a man who was certainly of his time, but put
his career and influence on the line to do the
right thing for our country. You to tell a story
is Josiah Daniel Take it away.
Speaker 2 (00:31):
Josiah Hatton was a confirmed bachelor, so he had no offspring.
She was born in rural Tennessee in eighteen seventy five,
and he moved with his family to Garland, Texas in
eighteen ninety ninety or ninety one, and as a child
(00:53):
or a young man a teenager, he entered into an
arrangement with a book publisher to make door to door
book sales in rural Tennessee. He was so young his
father had to co sign the contract with him, and
he became disgruntled with the publisher, felt that he wasn't
(01:14):
receiving the commissions to which he was due based upon
his successes in the sales, so he wrote a series
of hot letters to the publisher in which he threatened
to sue them. I see this as an early manifestation
of his lawyerly instincts. The traditional way to become a
(01:36):
lawyer in the US was to quote read the law,
or to become an apprentice in a lawyer's office. You
would help the lawyer in his practice, probably copying documents
and things. At the same time, the lawyer would teach
the apprentice the rules of law and how you be
a lawyer. Summers did that for two years in the
(01:58):
office of the City Attorney of Dallas, and after that
he passed what was then a pretty simple bar exam
and became a licensed lawyer. He was therefore more or
less a self taught lawyer and constitutional scholar. I believe
(02:19):
Sumners was always a little embarrassed that his formal education
was so skimpy. He had one year of a formal
high school. So when he got to Congress, he was
in the minority party, the Democratic Party, so he didn't
have a lot to do legislatively, and he did walk
over to the library of Congress and just read law
(02:42):
books and history books and taught himself a lot of history,
particularly focusing on the history of the Constitution, all the
way back through English legal history, back to the Norman
Conquest and even earlier. That's how he became a well,
well recognized and skillful constitutional scholar. Was reading it at
(03:07):
the Library of Congress, and even FDR recognized it. Franklin D. Roosevelt,
the President, asked Hatton Sumners to write a constitution for
the Philippine Islands. At that point, the Philippines were a
territory of the USA, but Congress a few years earlier
(03:32):
had legislated that it was to be made an independent
nation over a period of time leading up to about
nineteen forty one, and Sumners wrote a constitution that was
the model or draft from which the Philippine people themselves,
in their own constitutional Convention, wrote their own constitution. They
(03:55):
didn't accept everything, or even maybe very much of what
he proposed in his constance, but the fact that Roosevelt
picked Sumners shows that he reposed a fair amount of
confidence in Sumners as a constitutional scholar and constitutional lawyer.
And some people think Sumners could have been a candidate
(04:17):
for the Supreme Court. I guess maybe if the court
packing plan had passed. He was quite opposed, and he'd
put his political influence, his clout, his reputation on the
line in opposing it. Any attempt to understand the nineteen
(04:38):
thirty seven court packing crisis should begin with the Great Depression.
Speaker 3 (04:45):
On a Sunday night, a week after my inageration, you
were at the radio to tell you about the banking
crisis and about the measures that we would take into meeting.
In that way, I tried.
Speaker 2 (04:55):
To make plans in the.
Speaker 3 (04:56):
Country very inspects that might not arise, have been misunderstood,
and in general to provide a means of understanding, which
I believed didn't much for stock content.
Speaker 2 (05:09):
So the stock market crashed in October nineteen twenty nine,
that's only ten months after Herbert Hoover had been inaugurated president,
and the US economy over the next several years entered
its worst period in all of US history. In some industries,
unemployment reached almost fifty percent, and in the cities there
(05:31):
were soup lines and people living in cardboard shanties. So
Roosevelt won in a landslide by about twenty three million
votes to sixteen million votes, and the voters also elected
strong majorities of Democrats in the House and Senate for
the first time in a long time. So FDR had
plenty of power to enact his platform, and his advisors
(05:55):
generated a surge of innovative legislation that Congress prompt enacted,
all of which is known collectively as the New Deal.
Speaker 1 (06:12):
And you're listening to Josiah Daniel tell the story of
Hatton Sumners, and my goodness, what a story you're hearing about.
Just for instance, how he got to practice law. There
was a day where you could apprentice and then simply
take the bar and you're a lawyer. I spent three
years at the University of Virginia School of Law, and
I really didn't learn anything about how to practice law.
(06:33):
And I paid a lot of money for it too.
We learned some of our Lincoln stories. He too had
a quote skimpy education, but my goodness, he taught himself
and gave himself a world class education as Hatton Sumners did.
When we come back, we're going to learn how this
man who helped write the Constitution as a congressman from Texas,
(06:54):
a Democrat for the President of the United States FDR,
put his own career in jeopardy by opposing President Roosevelt's
court packing scheme. That story continues here on Our American Stories.
(07:30):
This is Lee Habib, host of our American Stories. Every
day on this show. We tell stories of history, faith, business, love, loss,
and your stories. Send us your story small or large
to our email oas at Ouramerican Stories dot com. That's
oas at our American Stories dot com. We'd love to
(07:51):
hear them and put them on the air. Our audience
loves them too. And we returned to our American Stories
(08:11):
and the story of Hatton summoners and the court packing
crisis of nineteen thirty seven. Let's get back to the story.
Here again is former lawyer and expert Onnhattan, Jaziah Daniel.
Speaker 2 (08:31):
The specific programs ranged from temporary relief or jobs and
infrastructure projects for the destitute and the unemployed, and also
long term structural reforms such as taking the nation off
the gold standard, the Wagoner Act that validated labor contracts
(08:51):
and labor unions, social Security, the whole alphabet slew of
alphabet agencies and laws and programs Uprisingly, the businesses and
the individuals who disliked the president's legislated changes hired lawyers
and they sued to invalidate the new laws based on
(09:12):
various constitutional arguments. So some of the new Deal measures
began to encounter adverse rulings by the Supreme Court. At
that time, the court consisted of eight Associate justices and
one Chief Justice. The Chief Justice was Charles Evans Hughes.
(09:34):
Four of those nine formed a block that began to
vote consistently against the challenged New Deal programs. They were
known colloquially as the four Horsemen of the Apocalypse. Four
others tended to be more progressive and to vote to
validate the New Deal, and that left one swing vote,
(09:57):
Owen Roberts. And the year of the New Deal, nineteen
thirty five, Roberts began to vote with the four Horsemen,
and the Supreme Court invalidated a dozen New Deal laws,
the TRIPLEA, the Agricultural Adjustment Act, the Coal Act, the
Municipal Bankruptcy Act that had been sponsored by Hatton Sumners,
(10:22):
the Railroad Retirement Act, the National Industrial Recovery Act, and
a minimum wage law. In fairness, it's true that the
same court also sustained two dozen New Deal laws, But
never before had the Supreme Court invalidated so many laws
in such a short period of time that had been
(10:42):
passed on behalf of a president. Only three were decided
by a single vote, and some were unanimous. But in
the controversy, people began to notice that all of the
justices were rather well aged. They were seventy to seventy
seven years of age at a time when the average
(11:04):
life expectancy of a mail in the US was sixty.
So some political commentators began to lampoon the Court as
the old Nine Men. In addition, opponents of the New
Deal obtained more than two thousand injunctions against New Deal programs. So,
(11:25):
as I call it, Roosevelt had a serious litigation problem.
He was deeply concerned. He was frustrated and even angry
about it, and in the presidential election of November third,
nineteen thirty six, Roosevelt won his second term with an
(11:47):
even larger landslide. So he truly believed that he had
a renewed mandate for the New Deal from the people,
and literally two weeks after his inauguration, Roosevelt made a
surprising announcement at the White House. He had summoned the
leaders of Congress, including Sumners, who was the House Judiciary
(12:11):
Committee chair, and he proposed a bill under which each
justice aged seventy or more who declined to resign, one
additional seat on the Court would be automatically created, so
based on the ages of the justices, this implied there
(12:32):
would be six new justices for a total of fifteen.
FDR also proposed some other measures that he said would
promote the efficiency of the federal judiciary, and he called
the whole thing the Judicial Reform Bill. But the court
packing proposal was obviously the main point. Public consternation erupted.
(12:56):
The nation's newspapers editorialized for the next five and a
half months, almost all against it. Gallop Pole consistently found
the majority of Americans against it. People were arguing about
it on street corners and in public spaces, and they
literally covered Congress up with letters and telegrams, mostly in opposition.
(13:20):
But the President persistently pushed it forward, including by his
famous radio fireside chats and by personally lobbying members of Congress,
and it created what historians call a crisis. Now, I
guess I should pause and just cover a few fundamentals
(13:40):
of the US Constitution that are relevant to this story.
Article three, section one says the judicial power of the
United States invests in one Supreme Court and such inferior
courts as Congress from time to time establishes so Congress
not only establishes the lower federal courts, but it also
(14:01):
determines who are the rest of the justices that sit
on the Supreme Court. From seventeen eighty nine to eighteen
sixty nine, the number of justices on the Supreme Court
ranged from three to ten, but since then the number
has been nine. Also, Article three provides that all federal
(14:24):
judges hold their office during good behavior, which has always
been understood to mean for life, and shall receive compensation
for services that shall not be diminished during their continuance
in office. So life tenure and salary protection are the
two principal means by which Supreme Court justices are protected
(14:48):
against raw political pressure, as is applied to legislators and
even to the president. So the idea is that federal
judge just should be completely impartial, free of political pressure,
free from fear or favor in deciding questions of law.
(15:09):
And this is the concept called judicial independence. So what
is court packing? Well, it's defined by the Law Dictionary
as the notion of adding seats to the Supreme Court
in order to create a new majority of justices favorable
to the legislative and political program of a president and
the significance of a court packing proposal, then, is to
(15:32):
pack the court threatens to interfere in judicial independence and
in the normal operation of checks and balances as applied
to the judicial branch of the national government, as has
been the norm over our national history.
Speaker 1 (15:49):
And you've been listening to Josiah Daniel tell the story
of Hatton Sumners, and think about this remarkable man and
the position he's now in. He's hands down one of
the top constitutional scholars in Congress. That's why he's earned
the position of House Judiciary chairman. He's a Democrat. Franklin
Delanor Roosevelt is a Democrat. He's written the Constitution for
(16:11):
the Philippines, for goodness sake. And while FDR wins his
second term, wins it in the landslide, and that Supreme
Court keeps getting in the way of his legislative agenda,
and the Court at least enough members or of the
mindset that what the President is doing and what the
Congress is doing is unconstitutional. And this is the function
(16:33):
of the Supreme Court in the end, to be an
independent check on the popular majority and to uphold the
text of the Constitution. No majority can take away our
right to free speech. No majority can take away our right.
No amount of votes can take away our right to
process or to a search warrant. So if one hundred
percent of the electorate decides that there are no more
(16:54):
search warrants, that's why the Supreme Court's there. It says
no unconstitutional. So here's and and here's what we know
will be a showdown. You can hear it. Come in, folks,
this great Democrat chairman of the House Judiciary Committee and
Franklin Danno Roosevelt saying I've got a plan to get
my way with the Supreme Court. I'm going to add
(17:14):
members to get my way. What will happen next, Well,
that's why we're going to stick around. But my goodness,
when you start to hear some of these things today,
you're going to know that, well, we've been here before,
It's happened before. And that's what we love doing on
this show is tell stories that in some ways are
still very relevant. When we return the story of Hatton Sumners,
(17:37):
the story of FDR and is court packing, what happens
next here on our American story? And we returned to
(18:09):
our American stories and the final portion of our story
on Hatton Sumners and the Court packing crisis of nineteen
thirty seven. When we last left off, because Ia Daniel,
a former lawyer and expert on Hatton Sumners, was telling
us about how the crisis came to be. The makeup
of the court threatened FDR's New Deal policy. FDR wanted
(18:31):
to expand the court to as many as fifteen justices.
Haughton would stand opposed despite being a member of the
New Deal team. Let's return to the story.
Speaker 2 (18:46):
The Constitution doesn't say anything about how many justices will
sit on the Supreme Court. That's up to Congress to decide.
And Congress started with three, and it raised it to
four in eighteen zero one. Then in after the Civil War,
when Andrew Johnson became the president, the Republican Congress wanted
(19:07):
to deny him an appointment to the Supreme Court. By
this point in time, Congress had raised the number of
justices to ten. So Congress reduced it to nine, depriving
Johnson of an appointment. And it's been at nine ever since.
So it's not in the Constitution the number nine. It's
a matter of legislation, but it's also been a matter
(19:29):
long standing. People are used to it, and people believe
that it's an inherent part of the Supreme Court, and
there are scholars who will say that based on their
studies of judicial process, nine is a pretty ideal number.
An even number of justices just wouldn't work because there's
(19:50):
always the possibility of a tie, So we need an
odd number. And the case load of the Supreme Court
has always been such. In fact, the Court often has
been running a little bit behind and handling its docket
because it has so many cases. But you need nine
justices to be able to write the opinions expressing the
(20:14):
decisions of the courts on the issues presented in those cases.
You really do need nine different authors to be able
to write them all. That's kind of the magic of
the number nine. But FDR's argument for expanding the court
was very simply, and he acknowledged this in some of
(20:36):
his fireside chats, was to gain a majority of favorable
votes on the Court that would vote to sustain and
not reverse his New Deal programs. He was very explicit
about that. And with nine, and with Owen Roberts voting
with the four Horsemen, there were five of nine that
(20:57):
were a threat to his most cherished programs such as
Social security. That was really the reason, and honestly, I
can't think of any other really good reason people have
ever advanced for adding more. It's almost always been to
obtain a majority, and that clearly threatens judicial independence. And
(21:23):
Sumners he was quite opposed, and he'd put his political influence,
his clout, his reputation on the line in opposing it.
Although he was a member of the New Deal team.
The President wanted Sumners to file the Court packing bill,
(21:44):
and Sumners definitely sidestepped it, and he then had to
bite his tongue in public, and he got himself ready.
He introduced a bill called the Retirement Bill, which he
thought would solve the problem for FDR at the same
time preserving a court of nine. And that was to
(22:08):
make it possible for Supreme Court justices for the first
time to retire from the court and to keep their
compensation at the same amount for the rest of their lives.
There were several of the Supreme Court justices who wanted
to retire, but they felt that they financially couldn't. And
(22:28):
in correspondence with his constituents, he wrote to a Dallas minister.
He wrote, it's just good common practical sense to make
it possible for these men on the Supreme Court to
retire voluntarily when they want to do so. I am
putting everything I have into the effort to work this
(22:50):
problem out. It's like a fisherman trying to land a
big fish in difficult water. I do not believe anybody
on the bank can tell him very well what to
do to others, he confided that he believed he was
the only person in the nation who could do this,
and the thing he was trying to do did, in
(23:13):
fact only take a short amount of time. More the
Retirement Act was passed quickly on a bipartisan basis, and
then six weeks later, the first Justice announced his retirement,
so that opened a slot for the president to appoint,
(23:34):
and Roosevelt appointed Hugo Black of Alabama to fill that slot,
assuring a favorable majority on the Court for Roosevelt. Roosevelt
course didn't relent. He continued to push the court packing
plan for another couple of months, and finally Sumners couldn't
sit on his hands any longer, and on July the
(23:56):
thirteenth of nineteen thirty seven, he rose the House of
Representatives and he made a pretty long speech in which
he announced that the court packing bill, if it ever
passed the Senate and came to the House to his
House Judiciary Committee, it would never leave his committee. And
(24:17):
that's because he pointed out to the President, we've already
solved the problem by this retirement bill. You don't need
the court packing plan. He noted that replacing the one
justice fandom enter was just as effective for the President
as adding two seats on the Supreme Court would have been.
And he said, quote, there was no controversy, no noise.
(24:40):
We've done it with a surgical instrument, not a meat axe.
This was not mere politics for Hatton Sumners. He had
a very deep respect for the US Constitution. He thought
of it sort of as a platonic ideal that existed
(25:05):
and persisted over the millennia, unchanged and unchangeable, not perfect.
Obviously there have been amendments to it. And he also
thought that Supreme Court justices from time to time might
make the wrong decision, but he had faith that over time,
(25:26):
the Constitution and decisions made under it would adhere to
his ideal, and the court packing plan threatened that because
it violated what he thought of as the ideal of
the Constitution, and that is, let the institution do its
work and it will correct itself over time. In fact,
(25:49):
he showed by his Retirement Act that if you just
made it possible for a justice to retire who was
holding back for financial reasons, the president could appoint a
new one and a new majority would not make the
same decisions that the court had been making before. It
would sustain the president's program as opposed to invalidating it.
(26:14):
I think the rule of law depends, to a very
large extent in our nation on the existence and the
operation of the US Supreme Court. It's vital that the
public have respect for the Court and that the Court
have its decisions have legitimacy in the eyes of the
(26:38):
American people. And if those decisions are subject to quick
changes of court personnel at the behest of another branch
of the federal government, whether it's the President or Congress,
then the constitutional system is not being vindicated and the
(27:01):
Court will lose the respect. So court packing is a
real threat to the Supreme Court, its legitimacy and its
foundational role in the rule of law that we treasure
here in the United States of America.
Speaker 1 (27:20):
A story of profiles and courage hat in Sumner's story.
Here on our American stories.
Host
Lee Habeeb
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